Archive for the ‘Employment Law Blog (US)’ Category

A lawsuit filed by thousands of detained immigrants held at the Northwest Detention Center (NWDC) in Tacoma, Washington alleges systematic wage theft by GEO Group, Inc. The Plaintiffs seek to recover wages under the Washington Minimum Wage Act, as well as other damages allowable under State law.

GEO Group, Inc. has owned and operated the NWDC, which has 1,500 beds for immigrants, since 2005. The lawsuit alleges that “rather than hire from local workforce, GEO relies upon “captive detainee workers to clean, maintain, and operate NWDC.” It further states that “GEO’s NWDC Detainee Handbook describes detainee work assignments as including kitchen and laundry work, as well as recreation/library/barber and janitorial services. The Handbook refers to these various tasks as ‘work’ and a ‘job,’ and references ‘wages earned’ by detainee ‘workers.’”

The Plaintiffs asked the Federal District Court for class certification. Judge Robert Bryan of the U.S. District Court for the Western District of Washington determined that the detained immigrants have an “employment relationship with GEO.” The Judge determined that the group of detained immigrants all participate in a volunteer program at NWDC and allege the same “injury,” which is that they are only paid a $1 per day for work, “an amount not commensurate” with the law. The Judge granted certification for the Plaintiffs to proceed as a class.

In addition to the Federal lawsuit, the State of Washington has also brought a lawsuit against GEO Group, Inc. in the State Superior Court that alleges GEO is violating the State’s minimum wage laws. The Attorney General for the State of Washington, Bob Ferguson, stated, “A multi-billion dollar corporation is trying to get away with paying its workers $1 per day. That shouldn’t happen in America, and I will not tolerate it happening in Washington. For-profit companies cannot exploit Washington workers.”

Multiple lawsuits have been filed against private prisons, including GEO and others, over detainee pay and other issues. The lawsuits allege that the private prison giants use voluntary work programs to violate state minimum wage laws, the Trafficking Victims Protection Act, unjust enrichment and other labor statutes. The outcome of these cases will have significant effect on the way prison systems treat and compensate detained workers.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Layli Eskandari Deal of the law firm of Freeman Mathis & Gary, LLP at (770-551-2700) or [email protected].

Recently, the EEOC announced a settlement in a lawsuit brought against SLS Hotel in South Beach. The lawsuit, filed in 2017, followed an investigation into charges made by multiple Haitian former employees who had been terminated in April 2014. They worked as dishwashers in three separate restaurants located in the SLS Hotel. They alleged that they had been wrongfully terminated in violation of Title VII of the Civil Rights Act on the basis of race, color, and/or national origin. All told, there were 23 dishwashers fired on the same day in 2014, all but 2 of which were Haitian. On the date of termination, each terminated employee was called into a meeting with the HR department and fired. When fired, they allege, they were told that they must sign a separation and final release in order to receive their final paychecks. Prior to termination, they claim that they had been subjected to considerable forms of harassment including verbal abuse (they assert they were called “slaves”), being reprimanded for speaking Creole among themselves while Latinos were allowed to speak Spanish, and being assigned more difficult tasks than non-Haitian employees.

What makes this case interesting is that SLS had re-staffed these positions using a third-party staffing company. The new staff supplied by the staffing company were primarily light-skinned Latinos.The new staff also included at least one employee who had been terminated by SLS, but that individual was also Latino. Articles about this case from when it was filed, show that the EEOC took the position that SLS was attempting to hide their discrimination behind the use of the staffing company. SLS, for their part, asserted that they had made the decision to change to the use of a staffing company 2 years before the mass termination. Despite this, the district director emphasized once again, when the EEOC announced the settlement, that the EEOC will not allow companies to hide behind business relationships to engage in discriminatory practices. This was, according to the EEOC, just such a case.

So how egregious did the EEOC believe this case to be? They accepted settlement on behalf of 17 workers for the sum of $2.5 million, which works out to just over $147,000.00 per employee if split equally.

If you have any questions or would like more information, please contact Jeremy Rogers at [email protected].

As we recently posted, California recently passed the landmark California Consumer Privacy Act of 2018 (“CCPA”) that goes into effect on January 1, 2020 and grants California residents new expansive privacy rights. Many observers are comparing its scope to that of the European Union’s General Data Protection Regulation (“GDPR”). However, as protective as the new statute may be for California residents, it represents a number of significant burdens and challenges for businesses throughout the country.

Unknown Final Requirements

Despite what appears to be a finalized bill, future amendments and clarifications to the CCPA are necessary and will likely significantly alter the current draft. The CCPA was enacted after a single week of legislative debate. The reasons for the quick turnaround can be debated but the current draft contains a number of errors that will need to be addressed before its effective date on January 1, 2020. The uncertainty surrounding the bill means that businesses attempting to be proactive in terms of compliance may be throwing darts in the dark.

Attorney General Regulations

Additionally, the bill instructs the California Attorney General to develop regulations ahead of the effective data in a number of areas to further the purposes of the CCPA. While its arguable whether this will provide greater protections to consumers, it will undoubtedly come at the burden of those businesses covered by the CCPA. At this time these specific AG regulations are unknown and with an upcoming election, there is no guarantee we will know what these regulations will be until late next year before implementation.

Compliance Burn Out

As we all know, the GDPR went into effect on May 25, 2018. Most companies have spent the last year conducting data flow analysis, mapping, and regulatory compliance in order to come into compliance prior to the effective date. According to an October 2017 survey by Paul Hastings LLP, the cost of GDPR compliance for Fortune 500 firms runs approximately $1 million just for the necessary technology that those companies need to comply.

Unfortunately for all of those companies that spent the last 12 to 18 months traversing GDPR compliance, you will not automatically be complying with the CCPA. The CCPA requirements, while similar, do not entirely overlap with the GDPR and, in many cases, the CCPA goes even further than the GDPR. All those companies will now need to engage in an additional 18 months of legal compliance reviews in anticipation of the January 1, 2020 implementation date.

The scope of the CCPA affects businesses across the country, not just those in California. The CCPA protections generally encompasses all retail and commercial activity that includes the collection of data relating to a resident of California which retained, sold or transferred by the business. While the CCPA contains numerous exemptions of data use and functionality these exceptions require close scrutiny and analysis by covered businesses. To discuss how the CCPA might affect your business and what you can do in anticipation of the numerous issues relating to the act, please contact Jonathan Romvary at [email protected].

Employee’s Slang in Comments on Social Media Protected as Concerted Activity

A panel of the National Labor Relations Board ordered an Iowa electric company to rehire and pay back wages to a utility pole employee who was terminated for posting on social media that the Company was a “goat bang,” which he later testified was a commentary about the utility company’s safety policies—including (a) inadequate training and (b) splitting teams into groups that were too small to ensure employee safety. The Company learned of this social media post when employees who were offended by the post showed their supervisors.

The panel held that the Company violated the National Labor Relations Act (NLRA) by firing the employee for his post. The panel held that the social media comments (even calling the Company a “goat bang”), while not “inherently concerted” and therefore not subject to heightened protection, were “concerted activity for the purpose of mutual aid or protection.” According to the NLRB, the Company’s explanation for firing the employee was pretextual, as multiple Company witnesses said that the employee was “canned” because of his posts. Notably, the NLRB also determined that the Company’s “attitude” and “conduct” policies, which the Company pointed to in justification of this termination, were illegal under the NLRA because the policies interfered with workers’ rights.

This decision demonstrates the careful consideration employers should give to a decision to terminate an employee for raising concerns about the Company on social media. Employers should also be reminded to evaluate their seemingly neutral policies for compliance with the NLRA. For more information or to consult with one of FMG’s seasoned Labor and Employment attorneys regarding reviewing your company’s policies, contact Robyn Flegal at [email protected] or any of the attorneys in our National Employment Law Practice Group.

Last week, the Eleventh Circuit issued an order denying a request from a member of the Court for rehearing en banc. Bostock v. Clayton Co. Bd. of Commissioners, 2018 U.S. App. LEXIS 19835, 2018 WL 3455013 (11th Cir. July 18, 2018). The order was notable because it was accompanied by a dissent by two circuit judges sharply criticizing their colleagues for not agreeing to rehear the case en banc.

The plaintiff in Bostock had already filed a petition for writ of certiorari with the United States Supreme Court, and the County will be filing a response to that petition in the next few weeks. The employer in Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) (en banc) also has filed a petition for writ of certiorari with the Supreme Court seeking review of the Second Circuit’s ruling that Title VII does prohibit discrimination on the basis of sexual orientation.

We will report on the outcome of these pending petitions for writ of certiorari with the Supreme Court.

If you have any questions or would like more information, please contact Bill Buechner at [email protected].